Victims' Rights and Advocacy at the International Criminal Court

T. Markus Funk

Provides the first in-depth analysis of the important, complex, and often misunderstood role of victims at the ICC

Includes a primer on why the ICC was established, as well as on how it is structured, financed, and operated

Combines international justice theory with a practical discussion of developing ICC practice, procedure, and evidentiary rules.

Engages in a frank and earnest discussion of the disjunction between the Court's public proclamations of its intended mission and its actual results to date

Draws comparisons with the under-performance of other ad hoc criminal tribunals, pointing out reasons for these shortfalls, as well as proposals for reform

Uses extensive citation to authority to present proposals for reform

New to this Edition:

Provides a detailed analysis of the newly-recognized right of victims to participate in the trials of their accused abusers

Offers updated caselaw and other information to reflect the ICC's current positions on victim involvement and related procedure

Includes text to show how the new changes in the law affect ICC procedure and advocacy

Discusses how to qualify as legal counsel for victims, and how to seek reparations

Victims' Rights and Advocacy at the International Criminal Court

Second Edition

T. Markus Funk

Description

Since World War II, there have been some 250 conflicts throughout the world, leaving between 70-170 million atrocity crime victims. Unlike diseases or natural disasters, the injuries and tragedies of war are largely self-inflicted. Created in response to such outrages, the International Criminal Court (ICC) stands as the first and only permanent juridical body prosecuting genocide, war crimes, and crimes against humanity.

Victims' Rights and Advocacy at the International Criminal Court introduces readers to the most significant restorative feature of the ICC's procedure: direct victim participation in war crime trials. Under this new model, the ICC has given victims a voice to speak out against their abusers.

T. Markus Funk presents the first comprehensive guidance on this innovative dynamic, analyzing not just the procedural rules that apply, but also the practical problems in advocating for victims before the ICC. In the process, Funk provides an overview of ICC trial procedure, a candid assessment of the performance of the ICC and its predecessor tribunals, and a guide to the development of victims' rights under international law. Not only does he identify areas needing reform and reconsideration, but he also provides readers with concrete solutions. Funk, an experienced federal prosecutor and law professor who has advised prosecutors and judges at criminal tribunals as the U.S. Justice Department's Resident Legal Advisor for Kosovo, draws on that experience to suggest ways in which the ICC can improve the lot of victims of the world's worst crimes.

This second edition provides a detailed analysis of the newly recognized right of victims to participate in the trials of their accused abusers. The author guides the reader through this unique, controversial body of procedural and substantive rights for victims of atrocity crimes, and discusses how to qualify as Legal Counsel for Victims, and how to seek Reparations. In addition, the author provides updated caselaw and other information to reflect the ICC's current position on victim involvement and related procedure as well as text to show how these changes in the law affect ICC procedure and advocacy.

Victims' Rights and Advocacy at the International Criminal Court

T. Markus Funk

Table of Contents

Foreword by Paolina Massidda, Principal Counsel, Office of Public Counsel for Victims, International Criminal Court

About the Author

PART I. INTRODUCTION

PART II. A Legacy of Abuse and Suffering Leads to the Birth of the ICC

PART III. TRACING THE DEVELOPMENT OF VICTIMS' RIGHTS UNDER INTERNATIONAL LAWA. Victim-Centric Justice of the 1400's - Customary Law As Exemplified By the Code of Leke DukagjiniB. Centralized State Power in the 1700's and 1800's, the Scientification of Criminal Law, And the Decline of Victims' Rights Under Domestic LawC. Twentieth-Century Resurgence of Victims Rights Under Domestic LawD. Victims' Rights Recognized as Part of International Law

PART IV. PRIMER ON THE ICCA. Breaking New Ground for Victims' RightsB. The ICC's Operation C. The ICC's Limited Subject-Matter JurisdictionD. Territorial and Personal JurisdictionE. The ICC's Limited Temporal JurisdictionF. The ICC's Due Process GuaranteesG. The "Complementarity" Firewall: Understanding the ICC's Key Admissibility TestH. Case InitiationI. A New Paradigm: The ICC's Hybrid System of AdvocacyJ. Reconciling the ICC's Sweeping Promises to Victims with the Realities on the Ground

PART V. THE ROME STATUTE'S GROUNDBREAKING (AND EXPANSIVE) RECOGNITION OF VICTIMS' RIGHTSA. Victims' Rights Enshrined in the ICC's Rome StatuteB. Summary of the ICC's Victim-Related Rules of Procedure and EvidenceC. Select Victim-Rights Case LawD. Exploring the Role of Victims as "Participants" in ICC ProceedingsE. Modality and Extent of Victim Participation Remain Unsettled

PART VI. QUALIFYING AS LEGAL COUNSEL FOR VICTIMSA. Becoming a Formally-Recognized ICC "Victim Representative"B. An Alternative Mode of Legal Representation: "Assistant to Counsel"

PART VII. STEPS TO FORMAL RECOGNITION AS A "VICTIM"A. The Long and Torturous Road to Formal Recognition as a "Victim"B. Distinguishing Victims from Witnesses

PART VIII. Preparing for Complex Group RepresentationA. Promises and Potential Pitfalls of Group Representation - The Class Action ModelB. The Victim Representative's Duty of Loyalty to Clients

PART X. HOLDING A PRE-TRIAL EVIDENTIARY HEARING TO ESTABLISH THE HISTORIC RECORD A. Litigation Aimed At Creating Present and Future Individual (and Group) Accountability B. Convening a Pretrial Evidentiary Hearing to Develop the Common Factual Backdrop of the Case

PART XI. COMPILING A "VICTIMIZATION DOSSIER" AS A PERMANENT HISTORIC RECORD OF ABUSEA. The Carefully-Tailored Dossier as a Useful Tool for Victim RepresentativesB. Devising Standard Procedures for Compiling Evidence C. Developing Interview Protocols D. Submitting the Dossier to the CourtE. Submitting the Dossier to the Office of the Prosecutor

PART XII. PRE-TRIAL PROCEEDINGSA. Functions of the Pre-Trial ChamberB. The Office of Public Council for the DefenseC. Victim Participation in Pre-Trial Investigative ActivitiesD. Pre-Trial Preparation with a Clear Focus on the Main TrialE. Some Observations On Pre-Trial Meetings with WitnessesF. Self-Representation and the Corresponding Threat to the Historic Record G. The Benefits of Guilty Pleas

Appendix I. Selected Articles from Rome Statute Appendix II. Selected Rules of Procedure and Evidence Appendix III. Regulations of the Registry Appendix IV. Selected Regulations of the Court Appendix V. Code of Professional Conduct for Counsel Appendix VI. Counsel Participation Form Appendix VII. Request for Participation in Proceedings and Reparations at the ICC for Individual Victims Appendix VIII. Helping Victims Make Their Voice Heard Appendix IX. Representing Victims before the International Criminal Court: A Manual for Legal Representatives

Table of Authorities

ICC Legal Provisions

Index

Victims' Rights and Advocacy at the International Criminal Court

Second Edition

T. Markus Funk

Author Information

T. Markus Funk, now in private practice, served as a decorated Chicago federal prosecutor, Section Chief with the U.S. State Department-Balkans, clerk with the federal court of appeals and district court, and law professor at institutions including the University of Chicago, Oxford University, Northwestern University, and the US Department of Justice's National Advocacy Center. He trained and advised international war crimes judges, defense attorneys, victim advocates, investigators, and prosecutors in the Balkans and elsewhere. T. Markus Funk has the distinction of being the only person to have received both the Department of Justice's Attorney General's Award and the State Department's Superior Honor Award.

Victims' Rights and Advocacy at the International Criminal Court

Second Edition

T. Markus Funk

Reviews and Awards

"Markus Funk has written the 'must-read' book for all lawyers and judges who practice in the International Criminal Court and for the entire academy of international criminal lawyers. The practice and jurisprudence of victims' rights have grown so rapidly that Mr. Funk's book is an essential tool in the courtroom. Victims' Rights and Advocacy at the International Criminal Court meets the critical need for a detailed and comprehensive guidebook for the representation of victims. International justice is well-served by this path-breaking book." - Ambassador David Scheffer, U.S. Ambassador-at-Large for War Crimes Issues (1997-2001); Leader of the U.S. Negotiating Team in United Nations talks on the International Criminal Court; Director, Northwestern University's Center for International Human Rights.

"This intelligent book discusses a topical issue with vivacity. It puts forward a number of thoughtful and constructive proposals for ameliorating the victims' rights in the international criminal system." - Judge Antonio Cassese, First President of the United Nations International Criminal Tribunal for the Former Yugoslavia; Chairman of the UN International Commission of Inquiry on Darfur; Current President, UN Special Tribunal for Lebanon; Professor of International Law, University of Florence.

"Victims' Rights and Advocacy at the International Criminal Court is the first in-depth treatment of the most contemporary topics in international criminal justice, namely, the International Criminal Court and victims' participation in international criminal proceedings. Mr. Funk's insightful and first-of-its-kind book is perfectly-timed to provide critical guidance to practitioners and academics alike. In so doing, the book effectively challenges some of the preconceptions observers have had about the roles played by victims and their representatives." - Professor M. Cherif Bassiouni, 1998 Chairperson of the Drafting Committee of the U.N.'s Diplomatic Conference on the Establishment of the ICC; President, DePaul University International Human Rights Law Institute.

"Victims' Rights and Advocacy at the International Criminal Court combines a keen historical appreciation of the victims' rights movement with a detailed practical knowledge of how victims' representatives can most effectively serve their clients, the court, and the general cause of justice. This volume is indispensable for those wishing to understand how the court has integrated victims into their processes and the directions in which the role of victims in these processes is likely to develop." - Judge Morris S. Arnold, United States Court of Appeals for the Eighth Circuit; former university vice president and professor at the University of Pennsylvania Law School; former Dean of the University of Indiana School of Law.

"Mr. Funk's book provides a perfectly candid, and at times quite disheartening, assessment of the ICC's shortcomings, while also acknowledging its strengths. Providing a roadmap to reform and the establishment of a more 'professionalized' Court, Mr. Funk's book succeeds entirely in its bold effort to marry the theory of victims' rights with the practice of victim representation." - Justice Enver Hasani, President of the Kosovo Constitutional Court.

"[Mr. Funk's book] is a very meticulous, detailed, and methodical handbook for the victims' representatives. Mr. Funk establishes the basis for a thorough and meticulous vade-mecum that every victim representative at the ICC will want to have within easy reach." - Prof. Pierre-Michel Fontaine, Former Chief of the UN High Commissioner for Refugees' Promotion of Refugee Law Section.

"As T. Markus Funk in this groundbreaking book illustrates so compellingly, the broad crimes punishable by international criminal law generate a disturbing number of real flesh-and-blood victims. . . . This book in the end leads to a dramatically-improved comprehension of victims' rights by significantly advancing the debate on victims' participation within the framework of the Rome Statute, and by enhancing our shared understanding of how to most effectively and responsively address victims' needs, as well as their interest in participating in the proceedings." - Paolina Massidda, Principal Counsel of the International Criminal Court's Office of Public Counsel for Victims

"[B]ecause of its clearness, pragmatism and facile structure, it is easy to imagine Funk's book becoming very soon a 'must-have' on the desks of practitioners working on victims' participation and victims' rights at the international level." -Valentina Spiga, Book Review, Oxford Journal of International Criminal Justice

"Funk's primer on how best to represent victims is seasoned with ICC case law and meaningful insights that all ICC victim advocates need to know in order to be effective...T. Markus Funk's Victims' Rights and Advocacy at the International Criminal Court is a valuable read and resource for those who care about international justice." - Prof. Juliet Sorensen, Book Review, Journal of Criminal Law & Criminology (2010).